Pollard Again

Israeli Prime Minister Bibi Netanyahu has formally requested that convicted spy Jonathan Pollard should have his sentence commuted by President Obama. The request is undoubtedly in deference to Netanyahu’s extreme right wing coalition partners who regard Pollard as a hero. According to the State Department, the White House is considering the request.

Doubtless there are Jewish voters and contributors to Democratic coffers who want to see Pollard freed and would make a greater effort to bring about the reelection of Obama in 2012 if the president were to act favorably on the request. But consider this: Pollard did far more damage to US security than any other American official who has turned traitor and he did it for money. My sources close to the damage assessment inform me that it cost more than $3 billion to change the defense department communication codes that Pollard betrayed, something that was of enormous value to the Soviets and wound up traded to them by Israel. The number of US agents in the Soviet Bloc, to include some American citizens, who were identified through information provided by Pollard and were presumably executed is in the double digits. That this man should go free to curry favor with the Israel Lobby and with a snake like Netanyahu is despicable. Bill Clinton almost did it and one wonders if a politically damaged Obama will take the plunge. If he does, the defense and intelligence communities will not stand for it, setting up an interesting confrontation with the White House over the next two years. Obama should once and for all state emphatically that Pollard will never go free.

18 Responses to Pollard Again

If I were in charge, the only way Pollard would be granted commutation of sentence is if I got Israel to retreat to 1967 borders and guarantee no settlements beyond those borders… ever. And they’d have to actually do that before Pollard was released.

“Pollard’s plea agreement required him to plead guilty and to cooperate. On its side, the government made three promises of significance here.

First, it would bring to the court’s attention “the nature, extent and value of [Pollard’s] cooperation and testimony” and would represent that the information supplied was of “considerable value to the Government’s damage assessment analysis, its investigation of this criminal case, and the enforcement of the espionage laws.”

Second, it would not ask for a life sentence (this promise was implicit but it is not contested by the government), though it would be free to recommend a “substantial period of incarceration.”

Third, the government limited its reserved right of allocution to “the facts and circumstances” of Pollard’s crimes. The government complied in spirit with none of its promises; with the third, it complied in neither letter nor spirit.
…On the promise not to ask for a life sentence, the government coupled its adherence to the letter with an even more flagrant violation of the agreement’s spirit.

It presented memoranda from Secretary of Defense Weinberger saying that “no crime is more deserving of severe punishment than conducting espionage activities against one’s own country,” that “it is difficult for me … to conceive of a greater harm to national security than that caused by the defendant,” and that “the punishment imposed should reflect the perfidy of [his] actions, the magnitude of the treason committed, and the needs of national security.”

While these remarks did not expressly endorse a life sentence (or use a synonym…) the repeated use of superlatives implied an appeal for the maximum. Weinberger’s reference to treason took the point further. Whereas treason carries the death penalty, and involves aiding the nation’s enemies, Pollard was charged with espionage, carrying a maximum of life imprisonment and encompassing aid even to friendly nations – here, Israel.

Of course the sentencing judge knew the difference, but the government’s barrage expressed a viewpoint that the government had promised not to express. Weinberger’s subtext was that the heaviest possible sentence was the lightest that was just. …

That the government had reserved the right to seek “a substantial period of incarceration” does not change the analysis. Of course the government remained free to lay out the details of the crime and its impact on national security. These, coupled with an explicit plea for a substantial sentence, might well have secured the government’s objective. But the availability of these methods scarcely entitled it to wheel out the heaviest rhetorical weapons, calling for a life sentence in all but name……

Finally, despite its agreement to confine its allocution to the “facts and circumstances” of the offenses, the government told the district judge that Pollard’s expressions of remorse were “both belated and hollow” and “grounded in the fact he was caught (emphasis in original); that Pollard was a “recidivist” who was “contemptuous of this Court’s authority” and “unworthy of trust”; that Pollard felt “blind contempt” for the U.S. military, and had a “warped” and “skewed” perspective; that Pollard was “traitorous,” “arrogant [and] deceitful,” “without remorse,” and “literally addicted to the high lifestyle funded by his espionage activities.”

The assistant U.S. Attorney note that he (the assistant) had been brought up to regard two sins as “unforgivable,” arrogance and deception – precisely the two sins that he repeatedly imputed to Pollard. Pollard’s “loyalty to Israel transcends his loyalty to the United States,” said Secretary Weinberger.

The government devoted much space to marshaling evidence that Pollard was driven by greed (“enamored of the prospect for monetary gain”; motivated by “the lure of money”), and not materially affected by anti-terrorist concerns, or, by implied extension, by any sympathy for Israel.

The government contends that in the phrase by which it retained “full right of allocution at all times concerning the facts and circumstances of the offenses,” the limiting reference to “facts and circumstances” was a nullity. This is hard to swallow. As the majority points out, the contrast with the language in Anne Pollard’s plea agreement suggests that here the parties intended to excluded some otherwise acceptable elements of an allocution.

So the government was free to relate not only the intelligence implications of Pollard’s acts, but also details supporting an inference that his motive was pecuniary. But if the limit meant anything, it could not allow the government to wrap the raw facts in an inflammatory rhetoric, endlessly alluding to its (necessarily subjective) opinions that Pollard was greedy and immoral, depicting his conduct as the apogee of espionage, naming him a traitor, and delivering a tirade on his “arrogance and deceit.”

Taken together, the government’s three promises worked a substantial restraint on the government’s allocution. Its commitments to restrict itself to facts and circumstances, and to assess Pollard’s cooperation as having considerable value, closed off a means by which it might demand a life sentence in all but name….

Pollard’s sentence should be vacated and the case remanded for resentencing. This should occur before a new judge as [the Santobello case] indicates, even though “the fault here rests on the prosecutor (diGenova), not on the sentencing judge.” …

Though I do not wish to be too critical of the government, and though the analogy is inexact on some points, the case does remind me of Macbeth’s curse against the witches, whose promises – and their sophistical interpretations of them – led them to doom:

And be these juggling fiends no more believ’d,
That palter with us in a double sense;
That keep the word of promise to our ear,
And break it to our hope.”

In asking for “just the facts,” the felicitously named “furtive” forgets some things himself:

Contrary to the impression given Judge Williams’ dissent was not just in Pollard’s appeal of his sentence. Of course in the first place it should be understood that Pollard absolutely understood when he entered his guilty plea that it might be rejected, which is a powerful fact in its own right. But, still, he had the right to try to withdraw his plea afterwards and he did, filing a motion to do so based on lots of the grounds Judge Williams talks about above.

But Pollard lost that motion. Rather thunderingly, it might be said. And then he lost the appeal of that motion denial too. So that it was only several years later that he cobbled together some new arguments in a Habeas petition so that it is there, in that proceeding, where Judge Williams issued his lone voice of support of Pollard.

Accordingly, while no cosmic, ultimate judgment upon things, it is at least worthy of remark that of all the many many judges that examined the things furtive relies on, one and only one sees it his way.

And what of that one’s points? Well, while Judge Williams says that the government violated the spirit of promising Pollard to tell the sentencing judge of the extent of Pollard’s cooperation, Williams says absolutely nothing about how this was broken. Nothing. Absolutely nothing.

And as to the second promise the government made, and what *Williams* said was its third promise, they are interrelated and have to be understood together.

That second promise was that the gov’t would only ask for a “substantial period of incarceration,” and here Williams doesn’t deny that this is precisely what the government formally did in front of the prosecuting Judge. Precisely.

But, said Williams, this promise was essentially broken “in spirit” by what he also perceived was both the “spirit and letter” breaking of what he said was the government’s third “promise”: To “limit” itself to just describing the “facts and circumstances” of Pollard’s crimes. And overwhelmingly to Williams this was supposedly done via Weinberger’s memo to the Judge.

But the fact that this memo came from Weinberger can confuse the issue, because the layman might well say that “aha, being an official of the government then Weinberger *did* effectively break its promise to only ask for a substantial period of incarceration by the harshness of what he said.” But this is not so. Weinberger wasn’t the prosecutor, he was a witness. And the Judge knew it.

*Everyone* involved in these things understands that *whatever* allocution witnesses might say—and that’s all Weinberger was—the government still has its official, formal position. And thus the Judge fully understood that in no way could *any* of Weinberger’s statements be taken as contrary to the government’s formal position asking only for a “substantial” period of time.

This then leaves Williams sole complaint being that somehow Weinberger’s memo also violated the agreement with Pollard as to the government’s allocution rights. But firstly it should be noted that Pollard *could* have refused to make *any* deal unless the government agreed to say nothing at all and just remained mute, but he did not. So he knew full well of the government’s freedom here and the possibility of a Weinberger-type memo.

Secondly though, Williams’ view of the government’s allocution rights is shown to be ridiculous just by thinking of what it would mean in any other case: Presumably, that is, per Williams, when the government reserves allocution rights such as it did here and, say, puts on the victim of an admitted crime to talk about the “facts and circumstances” of that crime, it would have to not just limit but indeed dictate precisely (if also impossibly) what that victim says. So that, for instance, when the government only recommends a ten year sentence for a killer but puts on a spousal witness to talk about the “facts and circumstances” of the crime, it would somehow have to limit that witness to … not say that they think the death penalty was appropriate. And indeed even to … not go into any gruesome details about the manner of the murder which might suggest that a ten-year sentence was too much. And to say and/or not say an entire ocean of other things, impossible to define even.

This is all nonsense. Weinberg was testifying as a witness as to the facts and circumstances of what Pollard admittedly did. The Judge knew that, and knew that regardless of what Weinberger said the government’s formal, official position was only recommending “substantial” prison time.

Moreover, and very interestingly indeed given how unmentioned this was by “furtive,” *even before the plea hearing* Pollard was breaking the plea agreement that he, furtive and his supporters now so piously claim to rest upon. And this was openly noted by the government *at* that plea hearing, with the government saying it *still* nevertheless would stick to its part of the bargain. (With Pollard breaking all kinds of non-disclosure promises he had made in the agreement before the hearing.)

So in essence Pollard’s claim here comes down to the cry that while *he* could violate the plea agreement, the government could not, and yet did.

But it did not, and what’s hilarious and yet rather … furtively not mentioned are Pollard’s latest judicial forays essentially undercutting all his cries that indeed the government was wrong. Because what else is Pollard is now claiming in saying that he had “ineffective assistance of counsel”? Why, nothing less than effectively saying that the government’s conduct was so *clearly* proper that by allegedly not understanding same his attorneys were utterly ineffective representing him.

All this is tiresome enough of course, and yet none even touches upon what seems the otherwise unremarked-upon fact that here we have a man who betrayed his own country, and yet who, with a typical sickening self-righteousness which anyway shows him as non-repentent as hell, is now piously complaining that the very country he betrayed hasn’t treated him as punctiliously as he would have liked.

(… and doing so at the same time that, with every fibre of his being, he is clamoring not to be released back into this country as at least a good future citizen, but instead to the very power he betrayed it to.)

I very much doubt that there are a significant number of “Jewish voters and contributors to Democratic coffers who want to see Pollard freed.” Netanyahu’s request was a sop to his base, and I would bet Obama won’t spend even five seconds considering it – unless it’s in the context of a very unlikely change in Israel’s position on the settlements.

“The signatories on the letter include prominent religious and communal leaders from a wide array of Christian and Jewish communities, including representatives of Alliance for Jewish Renewal, American Values, Amit, Association of Reform Zionists of America, B’nai B’rith International, Central Conference of American Rabbis, Christians United for Israel, Conference of Presidents of Major American Jewish Organizations, EMUNAH of America, Florida Council of Churches, Hebrew Union College, Hillel, JCC’s of North America, Jewish Women International, National Council of Young Israel, New York Board of Rabbis, ORT America, Inc., Orthodox Union, Rabbinical Council of America, Religious Action Center of Reform Judaism, Religious Zionists of America-Mizrachi, Simon Wiesenthal Center, Union for Reform Judaism, Yeshiva University, and the Zionist Organization of America.”

The allegation that Pollard was not responsible for the death of American agents in Russia is frequently trotted out, most recently by Lawrence Korb, to mitigate the crime that was committed. In fact, the classified damage assessment made by the US government after the fact said that he was responsible for a number of deaths and disappearances and this judgment has never been rescinded. Subsequently, the Aldrich Ames case suggested that at least some of those deaths might have been attributed to the CIA traitor but as far as I know now one has ever given Pollard a clean bill of health on the issue. The fact that neither Pollard nor Israel nor Russia has ever come clean on by providing the documents involved means that there will always be some uncertainty in terms of who chopped whom, but the fact remains that the espionage carried out by Pollard was devastating.

I’m going to show this article the next time my co-worker, the one that thinks Israel can do no wrong, spends half the morning talking about the guest speaker that visited his odd little church the previous night. The one who has in all these guests from Israel who, according to my co-worker, tell the assembled congregation that Israel invented the internet,; the USS Liberty attacked Israel, which was only defending itself, that Pollard got a raw deal by an anti-Semetic judge, Israel has no influence in the US, etc, etc.
It won’t make any difference, of course. But maybe he’ll shut up and let the rest of us work.

These are pro-forma organizational signatures on boilerplate. There is no groundswell of support for a Pollard release among mainstream Jewish voters and contributors, and I doubt any except an oddball contributor has made a contribution dependent on the politician’s position on the Pollard issue.

Pollard is lucky he wasn’t sentenced to death for treason and we’ll ever know for certain the consequences resulting from his crime. No objective person can dispute that Pollard was a traitor. That said many claim that he has served over 20 years in jail for a crime for which others have served far less. I think Obama will have to weigh the situation and then decide. I don’t think he would have a problem over this issue with the voters whether he pardons Pollard or not.

Note also the serendipitous timing of an SEC filing by Comverse
to sell 8% of its majority stake in Verint — whose wiretap technology
is deeply embedded in the U.S. domestic surveillance infrastructure:

But if Netanyahu genuinely wants to craft a Grand Bargain,
perhaps he should propose the U.S. annex Israel as our 51st state.
That would allow a “Win-win” resolution of the Pollard case, and
alleviate counter-intel concerns about our Trojaned surveillance grid.

Best of all, it would reduce Israel’s current representation in
the U.S. Senate from 50+ senators, down to the more customary 2 per state 😉